The Right of Publicity: A New Framework for Regulating Facial Recognition

For over a century, the right of publicity (ROP) has protected individuals from unwanted commercial exploitation of their identities. Originating around the turn of the twentieth century in response to the newest image-appropriation technologies of the time, including portrait photography, mass-production packaging, and a ubiquitous printing press, the ROP has continued to evolve along with each new wave of technologies that enable companies to exploit peoples’ images and identities for commercial gain. Over time, the ROP has protected identities from misappropriation in photographs, films, advertisements, action figures, baseball cards, animatronic robots, video game avatars, and even digital resurrection in film sequels. Critically, as new technologies gained capacity for mass appropriation, the ROP expanded to protect against these practices. The newest example of such a technology is facial recognition (FR). FR systems derive their primary economic value from commercially exploiting massive facial image databases filled with millions of individual likenesses and identities, often obtained without sufficient consent. Such appropriations go beyond mere acquisition, playing critical roles in training FR algorithms, matching identities to new images, and displaying results to users. Without the capacity to appropriate and commercially exploit billions of images and identities, most FR systems would fail to function as commercial products. This article develops a novel theory for how ROP claims could apply to FR systems and details how their history and development, both statutory and common law, demonstrate their power to impose liability on entities that conduct mass image and identity appropriation, especially through innovative visual technologies. This provides a robust framework for FR regulation while at the same time balancing issues of informed consent and various public interest concerns, such as compatibility with copyright law and First Amendment-protected news reporting